Quia Emptores - Background

Background

Prior to the Norman Conquest of England in 1066, Anglo-Saxon land law was based on allodial title. Tribal lands were held in perpetuity by the group as a whole. The Normans changed this system by mandating primogeniture inheritance (the inheritance by the eldest son, at the expense of the other sons). The exact nature of allodialism as it existed in Anglo-Saxon England has been debated, but to no definitive end. On one side, it has been argued in the mark system, that Saxon allodialism was a highly idealistic socialist state. Countering this utopian view was Numa Denis Fustel de Coulanges in his essay "The Origins of Property in Land", and Frederic William Maitland who found it to be inconsistent with extant Anglo-Saxon documents from pre-Norman times.

In English law after the Conquest, the lord remained a grantor after the grant of an estate in fee-simple. There was no land in England without its lord: "Nulle terre sans seigneur" was the feudal maxim. The principal incidents of a seignory were an oath of fealty, a quit or chief rent; a relief of one year's quit rent, and the right of escheat. In return, for these privileges the lord was liable to forfeit his rights if he neglected to protect and defend the tenant or did anything injurious to the feudal relation. After Quia Emptores, every existing seignory must have been created prior to the enactment of the statute.

At the time of the Conquest, William I of England granted fiefs to his lords in the manner of a continental or feudal benefice which assured little beyond a life tenure. These grants were in turn subject to subinfeudation. Immediately after the Conquest, the English charters were careful to avoid saying the donee was to take the estate for life, or whether the heir was to have any rights. At this time, there is abundant evidence that lords refused to regrant on any terms to the deceased tenant's heirs; the deed phrase "to and his heirs and assigns" is the product of efforts by purchasers to preserve such rights on behalf of those who might inherit or purchase the land from them. The practice of demanding a monetary payment for regranting of tenancy to the heirs quickly became the norm. In 1100, the Charter of Liberties of Henry I of England contained the clause:

If any of my earls, barons or other tenants in chief die, his heir shall not redeem his land as he did in the time of my brother (i.e. William II of England), but shall take it up with a just and lawful relief. The men of my barons shall take up (relevabunt) their lands from their lords with a just and lawful relief.

The purpose of this charter was to establish the hereditary principle that the tenants in chief would have a superior status within the law as opposed to the sub-tenants. These overlords further subinfeudated those under them.

Relief later was set at a rate per fee in the Magna Carta.

The intent of primogeniture inheritance was to keep large land holdings in the hands of a relatively few, trustworthy lords. In reality, the whole feudal structure was a patchwork of smaller land holders. The history of the major landholding lords is fairly well recorded. The nature of the smaller landholders has been difficult to reconstruct. By the time of Bracton, it was settled law that the word "fee" connoted inheritability and the maximum of legal ownership. The word "fee" is associated with the Norman feudal system and is in contradistinction to the Anglo-Saxon allodial system. It became common practice to subinfeudate to the younger sons. There are cases from the time, in which a writ of the court was granted demanding that the eldest, inheriting son be forced to "accept in homage" the younger sons as a way of enforcing their subinfeudation.

The usage of land by tenants (serfs and peasants) was more difficult. Some families stayed on the land for generations. When the nominal head of the family died, it was usually of little consequence to the lord, or the owners of the title to the land. The practice of socage whereby the peasants pledged a payment (either in agricultural goods or money) for the privilege to inhabit and farm the land became the standard practice. After the payment, the peasant was considered "soked", that is, paid in full. It was discovered that agricultural land would be more economically tended if the peasants were assured an inheritance of the land to their descendants. This right to inherit was quickly followed by the right to alienation, i.e. the right to sell the inheritance to an outside party. Disputes arose when a family member wanted to leave inherited land to the Church, or wanted to sell the land to a third party. Questions concerning the rights of the overlord and the other family members were frequently heard in the courts prior to Quia Emptores. In general, it was held that a donor should pay the other parties who had an interest to give them relief. However, the results were haphazard and the rulings of various courts were patchwork. There was little established stare decisis from jurisdiction to jurisdiction.

This difficulty is illustrated in statements made by Ranulf de Glanvill (died 1190), the chief Justiciar of Henry II:

Every freeman, therefore, who holds land can give a certain part in marriage with his daughter or any other woman whether he has an heir or not, and whether the heir is willing or not, and even against the opposition and claim of such an heir. Every man, moreover, can give a certain part of his free tenement to whomsoever he will as a reward to his service, or in charity to a religious place, in such wise that if seisin has followed upon the gift it shall remain perpetually to the donee and his heirs if it were granted by hereditary right. But if seisin did not follow upon the gift it cannot be maintained after the donor's death against the will of the heir, for it is to be construed rather than a true promise of a gift. It is moreover generally lawful for a man to give during his lifetime a reasonable part of his land to whomsoever he will according to his fancy, but this does not apply to deathbed gifts, for the donor might then, (if such gifts were allowed) make an improvident distribution of his patrimony as a result of a sudden passion or failing reason, as frequently happens. However, a gift made to anyone in a last will can be sustained if it was made with the consent of the heir and confirmed by him.

It has been commented that this illustrates a desire in Glanvill's time to formalize the practices of the day, in which someone having a tenancy could dispose of his land before death. While several problems were addressed (land given in marriage, land given on a whim, or on a death bed), the rules were still vague, when compared to similar cases in contemporaneous France. In the latter, strict rules had arisen defining exact amounts which could be allotted in situations such as "alienation of one-third, or alienation of one-half" of a patrimony or conquest. Glanvill is imprecise, using terms such as "a reasonable amount" and "a certain part".